Tsarnaev Without Tears: The Legal Way Forward

A reveler shakes the hand of a police officer as a crowd made its way toward Boston Common after the final suspect in the Boston Marathon bombing was arrested, Friday, April 19. (AP/Julio Cortez)

It's hard to write more urgently, or more eloquently, than Emily Bazelon has
written
at Slate about the dubious ramifications of the decision late Friday to interrogate the
Boston Marathon suspect Dzhokhar Tsarnaev without first informing him of his rights under Miranda v. Arizona. And my colleague David Graham has
rightly focused upon Sen. Lindsey Graham's (R-S.C.) unhinged response --
military detention for a U.S. citizen apprehended on U.S soil accused of committing domestic crimes-- which even the earnest folks at the Lawfare
blog thought had gone too far.

I write separately here to make a few additional points on the legal way forward here as we embark upon the latest case of the century.

What happened this week in Boston were domestic crimes, pure and simple. They were crimes that our civilian courts have processed for centuries: murder,
attempted murder, conspiracy to commit murder, use of a weapon of mass destruction (a bomb). Engaging in an act of "terrorism" which is defined in basic
terms, under federal law, as "an act that is dangerous to human life or potentially destructive
of critical infrastructure or key resources" and "is a violation of the criminal laws of the United States" and "appears to be intended to intimidate or
coerce a civilian population; to influence the policy of a government by intimidation or coercion; or to affect the conduct of government by mass
destruction, assassination, or kidnapping."

There seems to be enormous pressure, in and out of government, to treat this suspect like an international terrorist, whether he is one or not. Federal
officials want to do so because it's the post 9/11 narrative for which they have planned. Listening to the breathless media coverage Friday, for the
hours upon hours where nothing was happening, one could almost sense from the Beltway consultants and analysts as well a collective willing of this case to
morph into an Al Qaeda one. What was the basis for the speculation? A few videos on a website. A visit to Chechnya. Yet when the FBI interviewed the older
brother in 2011, reportedCBS News'
Bob Orr, they found no incriminating information.

It's still early, but I have yet to read anything from anyone who knows anything
about this case that explains what exactly is so illogical about the words reportedly uttered Friday by Chechnya leader
Ramzan Kadyrov, who said of the Tsarnaevs: "They grew up in the USA, their views and convictions were formed there. The roots should be looked for in
America." I realize this isn't what America wants to hear this morning. And I realize Kadyrov is highly motivated to deflect blame away from his country.
But what do we know about these two brothers today that makes it wrong?

Tsarnaev was apprehended 18 years to the day that Timothy McVeigh was arrested as he was speeding away from the Alfred P. Murrah Federal Building in
Oklahoma City. Perhaps Attorney General Eric Holder will correct me if I am wrong-- he should know, he was Deputy Attorney General in 1997 when the bombing
trials were held in Denver-- but there was no "public safety exception" delay inMirandizing McVeigh or Terry Nichols. This is how far the
constitutional requirement has eroded in less than a generation without a single United States Supreme Court decision to say so. I don't doubt that this
Court would today sanction such a broader interpretation of the rule. But so far it hasn't.

Even as Washington seeks to fit this story into a larger narrative, the Obama Administration has recognized that this is more like a blended case--
domestic terrorism with an international flavor, you could say. So, "public safety exception" or not, Tsarnaev can thank Jose Padilla for whatever
constitutional rights he will receive in the next few days and weeks. Padilla, too, was a U.S. citizen, apprehended on American soil, accused of a
form of terrorism. But Padilla, whose alleged plot never came close to fruition, was thrown into military detention, for years, and deprived of basic due process rights until the federal courts
belatedly forced Bush officials to turn him over to civilian custody. The Tsarnaev case starts where Padilla case ended. And Tsarnaev's U.S citizenship
makes a big difference -- politically and legally.

All that said, this is not likely a case where the defendant's confession is going to be dispositive. The feds won't likely need to introduce at
Tsarnaev's trial(s) any "confession" or other incriminating statements he may theoretically make before he is informed of his right to remain silent and of
his right to a lawyer. Just think of the eyewitnesses, and the video surveillance, both from Monday and from late Thursday night, which would likely be
used against him in a court of law. Just think of the physical evidence that links him to his alleged crimes. There is, as Bazelon says, good reason to be
concerned about the Miranda "exception" swallowing the rule. But there is little reason to think it will unduly prejudice Tsarnaev in this case.

The good news is that there is a decent chance that the coming case will be presided over by one of the nation's finest trial judges. U.S. District Judge William Young is a likely candidate to get the assignment because of his
past experience with terror trials -- he eloquently sentenced
Richard Reid, the "shoebomber" to life in prison a decade ago-- and for his penchant for handling other complex, high-profile cases. Judge Young, an
appointee of Ronald Reagan who has bravely criticized executive branch overreach when he's seen it, is not going to let the Justice Department push him, or
the defendant, around.

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